On October 7, the very last day for an appeal to be filed in Libertarian Party of Ohio v Husted, the Ohio legislature filed papers to intervene in the case, and to appeal to the 6th circuit. The Secretary of State doesn’t want to appeal, but the legislature does. First the legislature will need to persuade the court to let it intervene. If the legislature is permitted to appeal, then it will ask the 6th circuit to overturn the U.S. District Court order of September 7 that put the party on the 2012 ballot.
The legislature’s action is especially surprising, given that the law passed by the legislature in 2011, HB 194, is now suspended. With HB 194 not in effect, and with the primary set for March instead of May, the statutory deadline for new parties to submit a petition to be on the ballot in 2012 is November 2011, the very same deadline held unconstitutional in 2006 by the 6th circuit. Even if HB 194 weren’t suspended, the deadline would be in December 2011, almost as bad. Furthermore, due process would seem to provide that even if December 2011 were constitutional on its face, such a deadline can’t be imposed on such short notice.
HB 194 is suspended because a referendum petition was recently filed. When new laws are subject to a referendum, they can’t go into effect until the voters vote on the new law. Assuming the referendum petition has enough valid signatures, that vote on HB 194 would be in November 2012.
As noted earlier, on October 7, the Ohio legislature asked to intervene in Libertarian Party of Ohio v Husted, the ballot access case. Here is the state legislature’s brief, asking the U.S. District Court to let it intervene so that it may appeal the Libertarian Party’s September 7 victory. The legislature says it wants to intervene because the Secretary of State is not appealing.
Here is the Libertarian Party’s response, filed on October 8. The party argues that the U.S. District Court should not permit the legislature to intervene, mostly because the legislature waited an entire month after the party won injunctive relief. As the party’s brief notes, the Ohio Secretary of State had told the press on September 8 that he was not appealing. The party says it wouldn’t be fair to let the legislature intervene now, because the deadline for individual Libertarians to petition onto the Libertarian primary ballot is December 7, 2011. Anyone running in the Libertarian primary for U.S. Senate, or for President, needs 1,000 signatures. Presidential primary candidates cannot begin to petition until they have chosen a slate of delegates.
LP of OHio is now 4 and 0.
On October 18, Federal Judge ruled that LP of OHio WILL be on the 2012 ballot and instructed Ohio SOS to comply. It was basically a clarification of the Court’s ruling from September 7.